Kiernan's Corner: Preventive Law for Employers

It's CEPA Notice Time Again!

2012-01-12T15:09:00.000-05:00

Happy New Year from Kiernan's Corner!

Reminder: All NJ employers with 10 or more workers must annually distribute, either in hard copy or electronically, the required notice under the NJ Conscientious Employee Protection Act. The notice--in English and Spanish-- is here. Make sure to fill in the appropriate contact person information before distributing the notice to your employees.

Why not take care of this compliance obligation now, before you forget it?

New Fact Sheets on Retaliation

2011-12-28T15:20:00.000-05:00

Retaliation continues to be the #1 employment law issue. TheU.S. Department of Labor Wage and Hour Division (WHD) has just issued new fact sheets on the topic of retaliation.

FactSheet #77A, Prohibiting Retaliation Under the FairLabor Standards Act (FLSA), provides general information concerning theFLSA’s prohibition of retaliating against any employee who has filed acomplaint or cooperated in an investigation and is available on the WHD websiteat http://www.dol.gov/whd/regs/compliance/whdfs77a.htm

FactSheet #77B, Protection for Individuals under theFMLA, provides general information concerning the Family and MedicalLeave Act’s (FMLA) prohibition of retaliating against an individual forexercising his or her rights or participating in matters protected under theFMLA and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77b.htm

Attention! All NJ Employers! New Notice Must Be Posted and Distributed by 12/7/11!

2011-11-26T17:09:00.001-05:00

Attention all NJ employers! You have until December 7, 2011, to post the new, six-page notice of employers' obligations under various NJ labor laws. You must also distribute the notice to all current employees, as well as to all new hires since November 7, 2011 and all new hires thereafter. Failure to comply with the posting and notice requirements could lead to a fine of up to $1,000, as well as criminal penalties.

The new notice, which is required by Section 4 of New Jersey Law 2009, chapter 194, is available for download from the NJ Labor Department at http://lwd.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/MW-400.pdf.

While the new regulation allows electronic posting and distribution by e-mail, I recommend that you also conspicuously post the notice physically, in the break room or other location where you normally put state and federal posters.

Oops! "Inside sales" mistakenly omitted from overtime revisions

2011-10-23T18:27:00.000-04:00

As we recently reported. New Jersey just adopted the federal "white collar" overtime regulations at 29 C.F.R. Part 541. While the FLSA Part 541 regulations define executive, administrative, professional, computer, and outside sales exemptions, employees. Part 541 does not cover the FLSA Section 7(i) exemption for commissioned sales employees of a retail or service establishment.

As a result of this omission, New Jersey regulations no longer include “an employee whose primary duty consists of sales activity and who receives at least 50 percent of his or her total compensation from commissions and a total compensation of not less than $400.00 per week". So, it looks like New Jersey no longer recognizes an exemption for commissioned inside sales employees .

The New Jersey Department of Labor and Workforce Development has confirmed that this omission was inadvertent, and that they are doing everything possible to fix the problem. However, it may be six months or more before the necessary regulation changes can be made. For the time being, Neww Jersey law does not classify commissioned sales employees as exempt, so they should be entitled to overtime pay and other benefits.

NJ adopts new overtime regulations

2011-09-21T15:39:00.000-04:00

On September 6, 2011 the New Jersey Department of Labor and Workforce Development adopted new overtime pay regulations which make New Jersey's overtime standards consistent with federal regulations. Obviously, this will make it easier for NJ companies that do business in multiple states by elimiating the conficts beiween state and federal laws. To read the new regs, go here.

E-Verify Self-Check Now Available in NJ

2011-08-29T08:58:00.000-04:00

Self Check, a free federal online service that allows workers to check their own employment eligibility status, is now available to New Jersey residents, and is now available in Spanish,

For several years, employers have been using the Internet-based E-Verify service, a Department of Homeland Security program administered by USCIS in partnership with the Social Security Administration. to determine employees’ eligibility to work in the United States through information reported in the employee's Form I-9. When NJ workers use Self Check to confirm their eligibility to work in the United States, they enter the same information that employers would enter into E-Verify. Self Check allows users to compare their information to the same databases that E-Verify accesses, giving them an opportunity to address any existing data mismatches before they are hired by an E-Verify-participating employer.

Self-Check is strictly voluntary, however, and employers cannot ask or require their workers to use it. The program is now available in 21 statres, and will go nationwide in 2012. For more information on Self Check, visit www.uscis.gov/selfcheck.

NJ court to employers: Train your employees! We mean it!

2011-08-16T11:23:00.000-04:00

In a recent case, Allen v. Adecco, Inc., (App. Div. 2011), the New Jersey Appellate Division reemphasized the standards for an effective anti-harassment policies. A crucial element is manager and employee training.

Jessica Allen was a temporary employee at the University of Medicine and Dentistry of New Jersey (“UMDNJ”). She alleged that her supervisor was sexually harassing her through graphic, vulgar language and unwanted touching on her back, thighs, and buttocks.   Within hours of receiving Ms. Allens's complaint, UMDNJ transferred the supervisot to another position in the same building and began an investigation. But the supervisor's harssment continued. Ms. Allen complained again, and UMDNJ then transferred her to another building. When Ms. Allen was terminated a few months later for attendance abuse, she sued for sexual harassment, sex discrimination and retaliation.

The trial court granted UMDNJ’s motion for summary judgment, reasoning that there should be no liability becasue UMDNJ had an anti-harassment policy, it promptly addressed Ms. Allen’s complaint by transferring the superisor, and that it terminated Ms. Allen for poor performance.    But the Appellate Division reversed, and set the case back for a jury trial, finding questiona about whether UMDNJ had the kind of active and effective anti-harassment policyneeded to limit or escape liability. That Ms. Allen was a temp, hired through Adecco, did not relive UMDNJ of responsibility or absolve it of liability.

Even though UMDNJ promptly investigated Ms. Allen's harassment claim and took prompt remedial action, the court ruled that UMDNJ might still be held liable due to the employer’s alleged insufficient publication and training with regard to its anti-harassment policies. Ms. Allen testuified that she had never received anti-hassment trainging at UMDNJ, and, although the supervisor had been to training, he was unable to answer many of the questions he was asked about UMDNJ policy and complaint procedures.

The court stressed that, under NJ law, an effective anti-harassment policy contains: (1) a formal prohibition of harassment; (2) training for workers, supervisors and managers on recognizing and eradicating harassment; (3) mechanisms for assessing the policy and the complaint procedure; (4) unequivocal commitment to a harassment-free workplace as demonstrated by consistent practice; (5) periodic publication of the policy; (6) remedial measures reasonably calculated to end harassment; and (7) an effective, practical complaint and grievance process.

If you haven’t updated your anti-harassment policy lately, nowis the perfect time. While the Allen case involves sexual harassment, don't limit your policy, but make sure that it covers all of the protected characteristics under federal and NJ law.   And, once your policies are up to date, the next steps are to hand them out, and to train not just your managers and supoervisors, but all emplopyees.

Practical advice on employee performance improvement

2011-08-11T17:24:00.000-04:00

I commend to all employers and HR professionals a very good article by John McLachlan, Esq. of Fisher & Phillips. Mr. McLachlan advocates (and I endorse!) approaching employe performance issues as a matter of mutual responsibility, requring the employee to collaborate in coming up with proposed solutions. Try his sugested method, and see if you agree.

Problem Employees? Here's A Solution

New law requires all NJ public employees to live in NJ

2011-05-26T15:53:00.000-04:00

As of September 1, 2011, all new New Jersey public employees must live in the Garden State.

The New Jersey First Act, P.L. 2011, c.70, requires all newly hired public employees to be New Jersey residents or to move to the state within one year of taking a position. Current employees living in New York, Pennsylvania, Delaware, or other states are exempt from the residency requirement.

The new law covers all state, county and municipal employees. including peopple working for political subdivisions of the state, as well as employees of public authorities, boards, agencies and commissions. Public school and higher education employees are also subject to the law, although the act does grant some flexibility to institutions of higher education.

New NJ Law Bars Discrimination Against the Unemployed

2011-04-28T09:46:00.000-04:00

Effective June 1, 2011, New Jersey will have a law that bars employers from advertising that the unemployed need not apply.

The new statute, N.J.S.A. 34:8B-1, prohibits an employer from publishing in print or on the Internet a job listing providing that the job qualifications include current employment; that jobless applicants will not be considered; or that only currently employed candidates will be considered for the position. To comply with civil service laws, the new statute does allow employers to post job openings that are available only to its current employees.

Job seekers will not be allowed to sue offending employers directly, but violators will be fined up to $1,000 for the first offense, up to $5,000 for the second, and up to $10,000 for each subsequent offense, payable to the state Department of Labor and Workforce Development.

Meow! Cat’s Paws Lead to Employer Liability

2011-04-11T20:42:00.000-04:00

What does a cat’s paw have to do with employment law? Over the past 20 years, a variety of lower federal courts had held employers liable for illegal discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision. This theory, dubbed “the cat’s paw” was adopted in March, 2011 by a unanimous court in Staub v. Proctor Hospital. Justice Scalia explained the feline reference in his opinion:

The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law …in 1990. [citation omitted] In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.

Vincent Staub, a member of the U.S. Army Reserve, worked as an angiography technician for Proctor Hospital. His supervisors were irritated when Staub’s Reserve duty schedule interfered with the hospital schedule, and made a number of anti- military remarks. One of them referred to Staub’s military obligations as “a bunch of smoking and joking and a waste of taxpayers’ money.”

The supervisors made up a rule requiring Staub to stay at his workstation, and then claimed he’d violated it. Staub complained to HR that his supervisors were discriminating against him because of his military status. But the HR manager didn’t investigate Staub’s complaint. Instead, she used Staub’s violation of the phony workstation rule to authorize and justify his dismissal.

The U.S. Supreme Court upheld a jury verdict in Staub's favor, saying there was ample evidence that not only were the two supervisors biased against Staub’s military obligations, but also that their actions “were causal factors underlying (the HR manager’s) decision to fire Staub.” The employer was held liable even though the HR manager who made the firing decision—the cat’s paw of our story-- didn’t have any discriminatory motives.

What this means to you:
The Staub ruling makes it clear that if the biased motives of a subordinate contribute to an adverse employment action, the employer can be liable for discrimination — even if the ultimate decisionmaker had no discriminatory intent whatsoever. And, employee complaints of discrimination and harassment cannot be ignored!

Employers must take a good look at a worker’s overall record before taking any adverse action, and the final decisionmaker is going to have to be sure that any action taken is due to documented. legitimate, non-discriminatory business reasons, consistently applied.

US Supreme Court: Friends and Family Now in the No-Retaliation Zone

2011-02-21T17:18:00.000-05:00

On January 24, 2011, a unanimous United States Supreme Court ruled that a man who was fired after his fiancée had filed a sex discrimination case against their mutual employer could sue the employer for illegal retaliation.

Eric Thompson and his fiancée (now wife), Miriam Regalado, both worked for North American Stainless. Three weeks after Miriam filed a sex discrimination charge against the company, Eric was fired. Eric fired back with a lawsuit claiming that NAS had fired him in order to retaliate against Miriam for her sex discrimination complaint. The lower federal courts dismissed Eric’s case, but the Supreme Court has reinstated it and sent it back for a trial on the merits.

In his opinion for the Court, Justice Scalia said that they had “no difficulty concluding” that third-party retaliation is illegal, given the Court’s previous decisions that retaliation covers a broad range of employer misconduct. “We think it obvious,” he explained, “that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” The Court refused to limit its holding to engaged couples or “a fixed class of relationships”, but instead noted that “firing a close family member will almost always” meet the standard, but “inflicting a milder reprisal against a mere acquaintance will almost never do so”.

The Court went on to find that Eric was within the zone of interests protected by federal anti-discrimination law, and therefore had standing to bring his suit, reasoning that Eric was “not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming [Miriam]. “ Thompson v. North American Stainless, 562 U.S. _____ (2011)

Since 2006, the Supreme Court has issued a series of unanimous or nearly unanimous opinions in favor of robust anti-retaliation protections. While third-party retaliation claims had been permitted under New Jersey statutes[Craig v. Suburban Cablevision, 140 N.J. 623 (1995), where a discrimination claimant’s mother, sister, and two close friends were given standing to sue after they were all fired], the Thompson opinion now makes third-party retaliation claims the law of the land.

Retaliation claims are often the fault of employers, who make the mistake of transforming a weak discrimination or wrongful discharge claim into a strong retaliation claim by the way they treat an employee who complains about discrimination, harassment, or other misconduct. Retaliation has been the #1 claim at the EEOC for the past two years, which makes it is more important than ever that managers, Human Resources, and Legal work together to thoroughly and impartially evaluate the situation before taking any disciplinary action, to ensure that there is no retaliatory motivation.

Word to the Wise

2011-01-25T10:04:00.000-05:00

From the always-informative Michael Maslanka's Work Matters blog:

Here is a question plaintiffs' lawyers like to ask in harassment cases: "Who at the company is responsible for enforcing the company's anti-harassment policy?" It is really a question about a company's culture and commitment to policing unlawful behavior. Typical answer: human resources. That's a weak culture. Better answer: "everyone." That's a strong culture.

It's Round-Up-Time! New NJ Wage Law Mirrors Federal Provision

2011-01-17T16:29:00.000-05:00

For years, NJ and federal law have differed about when and how and employer can "round" start and stop times. Under the FLSA, employers who use a time clock could round start and stop times to the nearest five minutes, tenth of an hour, or nearest quarter of an hour. This takes into account the practical realization that 100 employees with an 8 a.m. starting time cannot all punch in at once, nor could they all punch out exactly at 5 p.m. The federal regulations say rounding practices can’t always favor the employer. Rounding must be neutral or it must favor the employee. 29 CFR Sec. 785.48(b).

Until December 20, 2010, NJ employers had no option: They had to use exact start and stop times or they had to round in favor of the employee. Effective December 20, 2010, the NJDOL officially adopted as immediately operative N.J.A.C. 12:56-5.8, which mirrors the CFR provision exactly. This adoption is expecially important for multi-state employers, who can now maintain a uniform, nationwide rounding practice and payroll system.

NJ employers who want to use their new right to round down, must also round up. There are several ways to make rounding fair, including:

• Minute-based. For example, say your time clock pays by 15-minute intervals. If an employee punches in at 9:07 a.m., you’d round her start time down to 9:00 a.m. If she punches in at 9:08 a.m., you’d round up the start time to 9:15 a.m. This way, the rounding method will balance out over time.

• Start-stop method. Another option is to round up in the employee’s favor at all starting times. Then, at the end of the shift, round down to the employer’s favor at all quitting times.

It's CEPA notice time!

2011-01-05T10:55:00.000-05:00

Reminder: All NJ employers with at least 10 workers must annually distribute, either in hard copy or electronically, the required notice under the NJ Conscietious Employee Protection Act. The notice--English and Spanish-- is here. Make sure to fill in the appropriate contact person information before distributing the notice to your employees.

Why not take care of this compliance obligaton now, before you forget it?

ADA and Ergonomics--Part 3 of 4

2010-12-14T18:02:00.000-05:00

In the first two parts of this series, we looked at the ADA’s mandate for reasonable accommodations, and reviewed a reasonable accommodation case study where ergonomics played a leading role. In the next two parts, we will look at some recent court decisions involving ergonomics and reasonable accommodations.

According to the Equal Employment Opportunity Commission (EEOC), which enforces not only the ADA and the 2009 ADA amendments, but also the ADA’s predecessor, the Rehabilitation Act of 1973, when an employee asks for an ergonomic accommodation, the employer has the right to ask for medical documentation. As detailed in the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees:

Example B: An accountant with no known disability asks for an ergonomic chair because she says she is having back pain. The employer asks the employee to provide documentation from her treating physician that: (1) describes the nature, severity, and duration of her impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits her ability to perform the activity or activities; and (2) substantiates why an ergonomic chair is needed.

Here, the employee's possible disability and need for reasonable accommodation are not obvious. Therefore, if the employee fails to provide the requested documentation or if the documentation does not demonstrate the existence of a disability, the employer can refuse to provide the chair.

In Stoltman v. Federal Express Corp., 83 Fed. Appx. 898 (9th Cir. 2003), a disabled employee claimed discrimination because she did not get the ergonomic chair she had asked for, and was fired shortly after making her request. The federal appeals courts rejected her claim of discrimination, explaining:

Defendant complied with all of Plaintiff's requested accommodations except for providing an ergonomic chair. Defendant gave her two headsets, a larger keyboard, assistance with covering her expanded territory, and a paid leave of absence.

With respect to the request for an ergonomic chair, Defendant did not reject the proposed accommodation. Rather, Defendant conditioned supplying the chair on the receipt of a current prescription, which Plaintiff did not provide, and meanwhile proposed a practical alternative by ordering a high-backed chair. This interactive process was still ongoing at the time of Plaintiff's termination, and thus there is no evidence that Defendant failed to accommodate Plaintiff with respect to the requested chair.

Defendant offered a legitimate, nondiscriminatory reason for terminating Plaintiff's employment. She was fired for violating Defendant's mileage reimbursement policy... Moreover, there is affirmative evidence that the same manager had recently fired another, non-disabled employee for a similarly trivial violation of the reimbursement policy: using a long-distance calling card for a personal call.

In another ergonomic chair case, Cathy Melitski, a New Jersey state worker, had been hit by a car while walking to work, and suffered severe neck injuries, requiring surgery and resulting in limited neck mobility and pain exacerbated by prolonged sitting. She was granted a 13-month medical leave, and a month after she returned to work Ms. Melitski made an accommodation request for a part-time schedule, a stand-up desk, and a special Bodybilt ergonomic chair that cost more than $1,000.

In response, the State adjusted her schedule, bought her a stand-up desk, and provided two non-Bodybilt ergonomic chairs. Ms. Melitski insisted that she had to have the Bodybilt chair, and sued for failure to provide a reasonable accommodation. The State then bought her the Bodybilt chair, but she persisted in her lawsuit. The State argued that the first two chairs were reasonable, and that it had acted in good faith to resolve her ADA accommodation request. The State prevailed, and Ms. Melitski lost at trial because she did not present any evidence from her doctors proving that the Bodybilt chair was the only chair that would accommodate her disability. Melitski v.State, No. A-3848-07 (N.J. App. Div. 2009).

David Glow wanted a different type of ergonomic chair: a special ergonomic locomotive engineer’s seat. His employer, the Union Pacific Railroad, said that was unrealistic, since it owned more than 8,000 locomotives, any one of which Mr. Glow could be called upon to operate. The railroad offered to buy Mr. Glow a neck support or seat support, which he could use both on and off the job, or to consider any other recommendation his doctor made. But neither Mr. Glow nor his doctor ever followed up on the offer, so a federal court threw out Mr. Glow’s disability discrimination case, finding that Union Pacific had done everything in its power to find a reasonable accommodation. Glow v. Union Pacific RR, 652 F. Supp. 2d 1135 (E.D. Cal., 2009)

And then there is the case of Donald Stewart, a deputy sheriff in Wisconsin, who was assigned to monitor courthouse security, watching video screens that monitored courthouse activity. The ergonomics of the security post did not meet his needs, and Mr. Stewart’s chiropractor recommended that Mr. Stewart sit at slightly above eye level with the monitors, that he rotate his position once or twice an hour, that the lighting be softened, and that he be provided a more comfortable chair. The County built a platform in the security room, installed mini-blinds on the windows and film on the doors to minimize glare, and purchased an ergonomic chair, but that wasn’t enough for Mr. Stewart, who sued for failure to accommodate his neck and back problems.

A federal appeals court dismissed his case, explaining: “ [W]e confess that is difficult for us to imagine how much more Brown County could have done with the security room and the conditions of his employment to make life more comfortable, short of giving Stewart a blank check and full authority to order a complete rehab of the building.” Stewart v. County of Brown, 86 F.3d 107 (7th Cir. 1996)
Next time: The conclusion of our survey of recent ADA reasonable accommodation cases involving ergonomics.

NJ Unemployment Law Amended Yet Again

2010-11-26T11:29:00.000-05:00

On October 27, 2010, NJ unemployment law received some administrative amendments. Most notably, employers will no longer have their accounts charged when benefits are mistakenly paid becasue of a error by the Division of Unemployment and TDI. However, since the Governor refused to sign the original bill presented, because it also forgave repayment by the faultless unemployed claimant of those misatken benefits, that provison was omitted from the final bill, PL 2010, c. 82.

Other changes include:

As of December 1, 2010, requring employer agents, oither than attoneys, to register with the Division and be regulated by the Division, which has the power to suspend or revoke the agent's registration for repeated violations.
Increasing the time for appeals of final determinations, from 10 to 20 days after mailing.

Ergonomics and Reasonable Accommodations Under the ADA--Part 2

2010-11-24T10:32:00.000-05:00

In the first part of this series, we reviewed the ADA’s mandate for reasonable accommodations, and why those accommodations are even more important under the ADA’s 2009 amendments. Many medical disabilities for which an employee may request reasonable accommodation have ergonomic aspects. In this part, we will look at a case study.

Joanie, a clerical employee, is returning to work after carpal tunnel surgery on both hands, related to severe hereditary arthritis. In her return-to-work note, Joanie’s orthopedist advises:

Typing/keyboard work for no more than 30 minutes per hour

Use of split keyboard

5 minute break each hour to rest and stretch/exercise

Maintenance of neutral posture while working

Since Joanie’s arthritis substantially limits her ability to perform manual tasks, she is an individual with a disability under the ADAAA, and the orthopedist’s note is certainly a request for a reasonable accommodation. But, before we get to the question of whether we have to make these accommodations for Joanie, we need some more information. We need to know what are her job duties, which are essential, and which are non-essential.

When we review Joanie’s job description we find:

• Essential functions:

– Entering laboratory data into computer program

– Performing quality assurance checks on data

– Producing routine reports

– Answering telephone, assisting callers, and taking messages

• Non-essential functions:

– Acting as back-up for time-keeper for her work area

Then, we review how Joanie does her work, and we find that she sits at a computer workstation, shared with workers on other shifts, with a pull-out keyboard tray and a mouse on the desk. The lab data she enters is from work done the night before, and Joanie does data entry for the first 3 hours every morning. The rest of her day is spent on telephone duty, QA checks, and reports, with intermittent keyboard use.

After this review, we come up with a number of possible accommodations to Joanie’s disability (ergonomics solutions in italics):

• Change the way work is done to reduce time on keyboard:

– Scanning lab data

– Dictating reports

• Restructure work to avoid long periods of keyboarding

– Spread data entry out over the course of the day

– Build in short breaks

• Purchase equipment

– Split keyboard, per doctor’s recommendation

– Adjustable tray that will hold keyboard and mouse

– Footrest

• Provide training

– Proper posture

– Hand and wrist exercises

– Workstation adjustment: How to set the chair, monitor, etc. for optimal fit and efficiency

– Voice-recognition software

Armed with this analysis, we determine that scanning the lab data would not be a reasonable accommodation, because purchasing and customizing the necessary software and equipment would be prohibitively expensive, and, therefore, an undue hardship. But all of the other ideas seem reasonable, so we discuss them with Joanie, as the next step in the ADA interactive process. Joanie agrees that, with some training, she could use the voice-recognition software our organization already owns for dictating her reports. After talking with her supervisor, Joanie reports that she can reorganize her work day to split up the data entry into six 30-minute sessions. She also agrees to get coaching on proper posture and other ergonomic-related principles. We decide an adjustable tray is not needed if the chair is properly adjusted for Joanie, so we purchase the new keyboard and footrest (cost = $75), and arrange for Joanie to get voice-recognition software training and ergonomic-related instruction on the day she returns to work.

Six weeks later, we check in with Joanie and her supervisor. The supervisor is happy, since Joanie is meeting or exceeding all of the supervisor’s expectations for productivity and accuracy. Joanie reports that not only are her hands pain-free, but that she enjoys her more varied work day, now that data entry is spread throughout the day instead of consuming almost all of every morning.

Result: A successful accommodation, benefitting both the employer and employee.

Next time: A survey of recent ADA reasonable accommodation cases involving ergonomics.

Ergonomics and Reasonable Accommodations --Part 1

2010-11-17T22:14:00.000-05:00

This series of articles was originally written for the Ergo Edge Newsletter, published by Auburn Engineers, a leading ergonomic consulting firm.

As an employment law attorney who focuses on preventive law for employers, I do a lot of legal training for managers through Fair Measures Corp., as well as training for human resources professionals through HR Training Center. One of the issues I deal with repeatedly is how to provide legally-mandated reasonable accommodations for disabled employees. In this series of articles, I will first lay out the Americans with Disabilities Act’s requirements for reasonable accommodations, including the 2009 changes in the law. In Part Two, I will present and analyze a case study, and in Parts Three and Four I will provide a survey of recent case decisions involving ergonomics and reasonable accommodations.
For nearly 20 years, the Americans with Disabilities Act was very narrowly construed by the courts, with employers winning more than 90% of the cases. One reason was the statute’s complicated definition of “disability.” Under other employment laws, such as the Age Discrimination in Employment Act and Title VII of the Civil Rights Act, the protected characteristic is easy to find. For instance: Is the employee male or female? Under or over 40? What is his/her religion? National origin? Race?

It was not so easy under the ADA. While Congress’s stated purpose in enacted the ADA in 1990 was to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," the law was not interpreted broadly by the courts. Instead, the Supreme Court emphasized the idea that, using rigorous criteria, careful individual assessments had to be made in every case as to whether a person had a disability under the ADA. Physical and mental impairments as serious as monocular vision, epilepsy, muscular dystrophy, diabetes, cancer, and schizophrenia were all held by courts not to meet the statutory definition of “disability”. Most of the time, the court never got to the issue of whether the employer reasonably accommodated a worker’s physical or mental limitations, but threw the case out because the employee was unable to show that he or she had a covered disability.

Congress reacted to the courts by passing the Americans with Disabilities Amendments Act of 2008 (ADAAA), which went into effect on January 1, 2009. In the new law, Congress made it clear that the definition of “disability” must be construed in favor of broad coverage. What Congress wanted to do was shift the emphasis in ADA cases away from fighting over whether the worker had a covered disability. Now the EEOC, the courts, and employers must focus on the interactive process with a disabled worker, where the employer and employee discuss what reasonable accommodations will enable the employee to perform the essential job duties.

A "reasonable accommodation" is a change made to enable a person with a disability to perform the essential functions of the job. Most reported cases involve changes in the work environment, so a qualified worker with a disability can perform the job, and that is where ergonomics often plays an important part.

An individual with a disability is entitled to a reasonable accommodation to enable him/her to perform the essential functions of the job; the ability to do non-essential job functions is irrelevant. It is important that all jobs have current, accurate job descriptions, which detail the essential and non-essential job functions, as well as all physical requirements. In general, it is the responsibility of the disabled individual to inform the employer that an accommodation is needed, but the ADA does not mandate that an employee follow a formal procedure or use “magic words”. To be safest, an employer should consider as a request for accommodation any statement by an employee that a job modification is needed because of a medical condition that might be a disability.

Since each disabled person and his/her medical condition is unique, so will be the reasonable accommodations necessary to enable that person to perform the job.

An accommodation is not reasonable if it causes “undue hardship” to the employer. An undue hardship causes significant difficulty or creates a significant expense for the company (not just one department). It would "fundamentally alter the nature of the business." Buying equipment may well be considered reasonable, especially since according to the EEOC’s ADA Handbook, more than 70% of all accommodations cost between $0 and $500, and the median cost is approximately $240.

Next time: An ADA/ergonomics case study

Finally, EEOC Issues Final GINA Regs

2010-11-09T16:11:00.000-05:00

Almost a year after the law went into effect, the EEOC today issued final regulations implementing the employment provisions of GINA, the Genetic Information Nondiscrimination Act. GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information.

GINA applies to all emplpyers with at least 15 workers. Along with the new regs, the EEOC has provided a GINA Q&A for small employers.

Background: Congress enacted GINA with strong bipartisan support in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of fear that they could lose their jobs or health insurance if such tests revealed adverse information. GINA prohibits employment discrimination based on genetic information, and restricts the acquisition and disclosure of genetic information.

What's genetic information? The new regs clarify that the term includes information about individuals’ genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.

The final regulations provide examples of genetic tests; more fully explain GINA’s prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.

NJ cracks down on bad employees

2010-09-01T15:47:00.000-04:00

On July 2, 2010, New Jersey unemployment law was changed to make it more difficult for bad employees to receive unemployment benefits. The new law extends from 6 to 8 weeks the period of disqualification for employees fired for fired for work-related misconduct. It also creates a new category of complete disqualification for "severe misconduct."
Under prior law, employees who were fired from their jobs were completely disqualified from collecting unemployment benefits only if they committed a crime on the job. connected with the work. Now, a complete disqualification also applies to employees who are fired becuase of:

•repeated violations of an employer's rule or policy;
•repeated lateness or absences after a written warning by the employer;
•falsification of records;
•physical assault or threats;
•misuse of benefits;
•misuse of sick time;
•abuse of leave;
•theft of company property;
•excessive use of drugs or alcohol on work premises;
•theft of time; and
•other malicious and deliberate conduct.

Given this broad definition of "severe misconduct," employees who misbehave at work are risking not only their job security, but also their ability to collect unemployment benefits if they get fired. Since more unemployment claims will now be denied, and, therefore appealed, New Jersey employers must be sure to have clear documntation of objective, verifiable facts when terminating for severe misconduct.

Heads Up for Federal Contractors: Notify Workers About Their Union Rights

2010-06-17T18:05:00.000-04:00

If you work for a federal contractor with $100,000 or more in federal contracts, or a federal subcontractor with $10,000 or more, you must now put up a new poster telling your workers about their rights under the National Labor Relations Act, the federal law that governs the relationships among private sector employers, employees, and unions. The new poster describes employees’ right to organize a union and collectively bargain with their employer, gives examples of union and employer conduct that interferes with employee rights, and tells employees how to contact the National Labor Relations Board with questions or to file complaints if they believe their rights have been violated.

You can download the notice from the Department of Labor’s website and print it out for posting. In addition to physical posting, if your company posts notices to employees electronically, you must include this notice electronically via the link above. Electronic posting cannot be used as a substitute for physical posting. If a significant number of your employees do not speak English well, you must also post translated versions of the notice, which will be provided by the Department of Labor. The Department of Labor has published a Fact Sheet that explains the new posting requirements in detail.
The deadline for putting up the poster is June 21, 2010. Contractors who do not comply may have existing contracts suspended or cancelled and may be declared ineligible for future contracts.

What this means to you:

Even if you do not work for a federal contractor or subcontractor, now is a good time to review your workplace posters and make sure all required notices are there, and are up to date. You can review the Department of Labor poster website and the EEOC poster website and download the required items. Don’t forget to check state employment law posting requirements, as well. Finally, in New Jersey and several other states, employers which are places of public accommodation (dental and medical offices, retail stores, restaurants, hotels, hospitals, movie theaters, etc.) must also display an anti-discrimination poster for their customers, and real estate agencies or brokers, property management offices, and landlords must put up similar posters for their tenants and clients. All the NJ posters are available here.

Free checklist on independent contractors

2010-05-29T10:43:00.000-04:00

You all know about the state and federal crackdowns on misclassified workers. To help employers navigate through these waters, Mark Toth, GC at Manpower, Inc., has created a free checklist on employee/independent contractor issues. Click here to view and download it. As Mark advises, after you have answered the questions, be sure and get a legal opinion before making a final decision on worker classification.

Update on Nursing Mothers' Rights

2010-05-10T17:15:00.000-04:00

As I mentioned in a previous post, the new 29 USC §207(r) now requires that the following accommodations must be made by employers for nursing mothers:
* A reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth, each time such employee has need to express the milk; and
* a place, other than bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

Why was this made part of the health care reform law? Congressional sponsors cited these health concerns in support of this legislation protect a mother’s right to breastfeed and promoting breastfeeding as an option for working mothers: Breastfed babies visit the doctor less frequently, spend less time in the hospital, and require less prescription medication than bottle-fed babies, notes the Health and Human Services’ Office on Women’s Health. Because of the significant health benefits for the mother and child, the World Health Organization and American Academy of Pediatrics both recommend at least six months of exclusive breastfeeding for all infants.

There’s a plus side for employers, too: Because breastfed babies are healthier, this translates into reduced health care costs for breastfed infants and lower medical insurance claims for employers. Also, an employer is not required to pay an employee for the break time taken to express milk.

The new law went into effect immediately, and affects almost all US employers, although employers with fewer than 50 employees can claim an exemption "if such requirements would impose an undue hardship by causing the employer significant difficulty when considered in relation to the size, financial resources, nature, or structure of the employer's business.” New Jersey law ( N.J.S.A. § 26:4B-4/5 already entitles a mother to breastfeed her baby in any location in a place of public accommodation, resort or amusement. Note that the new federal law does not preempt any state law, such as New York’s, that provides greater protections to employees.

New federal law requires unpaid breaks for nursing mothers

2010-03-31T11:32:00.000-04:00

The health insurance reform bill signed last week by the president contains an employment law change. Section 4207 amends the federal Fair Labor Standards Act to mandate unpaid breaks for expressing milk, in a location other than a toilet stall. Because it is part of the FLSA, its provisions apply to almost all employers, although those with fewer than 50 workers will not be covered if they can show that compliance would cause undue hardship.

I am not sure what the effective date is. When I find out, I will let you know.

Here's the text of the new section:

SEC. 4207. REASONABLE BREAK TIME FOR NURSING MOTHERS.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C.
207) is amended by adding at the end the following:
‘‘(r)(1) An employer shall provide—
‘‘(A) a reasonable break time for an employee to express
breast milk for her nursing child for 1 year after the child’s
birth each time such employee has need to express the milk;
and
‘‘(B) a place, other than a bathroom, that is shielded from
view and free from intrusion from coworkers and the public,
which may be used by an employee to express breast milk.
‘‘(2) An employer shall not be required to compensate an
employee receiving reasonable break time under paragraph (1) for
any work time spent for such purpose.
‘‘(3) An employer that employs less than 50 employees shall
not be subject to the requirements of this subsection, if such requirements
would impose an undue hardship by causing the employer
significant difficulty or expense when considered in relation to
the size, financial resources, nature, or structure of the employer’s
business.
‘‘(4) Nothing in this subsection shall preempt a State law that
provides greater protections to employees than the protections provided
for under this subsection.’’.

Tax Alert! Increasted Interstate Collections Ahead

2010-03-22T12:22:00.000-04:00

Ever have an employee go out of state on business? That visit may give rise to income tax liabiulity In State #2. Check out the article in today's New York Times.

Coming April 1: New Job Rights for Volunteer First Responders

2010-03-22T10:20:00.000-04:00

The New Jersey Emergency Responders Employment Protection Act, (NJSA 40A:14-213 and -214) which goes into effect on April 1, 2010, bars employers from terminating, dismissing, or suspending an employee who fails to report for work because he or she is serving as a "volunteer emergency responder" who is either: (1) actively engaged in responding to an emergency alarm; or (2) volunteering as an emergency responder during a state of emergency declared by the President or the Governor.

Note that the volunteer emergency responder has certain obligations. First, the volunteer emergency responder must provide the employer at least one hour's notice before his/her regular startying time that he/she is rendering emergency services in response to an emergency alarm or a declared state of emergency. In addition, the volunteer must give his/ her employer a copy of the incident report and a certification by the incident commander affirming that the volunteer emergency responder was actively engaged in, and necessary for, rendering emergency services, including the date and time the volunteer was relieved from emergency duty.

Under the new law, employers do not have to pay for any time that the employee misses while serving as a volunteer emergency responder. However, if the employee has available sick or vacation days, the employee can use them to cover the time away from work.

Excluded from the new law are employees who, by statute or contract, are deemed "essential" employees. Unfortunately, the term is not defined under the new law.

New Jersey employers should review their policies to make sure they comply with the new law. In addtion, employers should assemble a list of workers who are volunteer emergency responders and determine if any of them are "essential".

All about partial unemployment

2010-03-09T16:43:00.000-05:00

In an attempt to save jobs in these tough times, some employers have been forced to reduce hours for full-time workers. Did you know that people who work part-time may be entitled to partial unemployment benefits? Well, they are in New Jersey, at any rate. Maguire v. Bd. of Review, 2007 N.J. Super. Unpub. LEXIS 2053 (App.Div. May 29, 2007).

First, let’s look at the definitions under the statute:

An individual shall be deemed "unemployed" for any week during which:
(A) The individual is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate. N.J. S.A. § 43:21-19(m)(1).

And the regulations:

"Unemployment" means the state of being unemployed (that is, not having a job, out of work). An individual shall be deemed "unemployed" for any week during which he or she is not engaged in full-time work and with respect to which his or her remuneration is less than the individual's weekly benefit rate. N.J.A.C. 12:17-2.1.

For 2010, the weekly benefit rate is 60% of the average weekly earnings during the base year period, up to a maximum of $600.

According to the 2009 DOL Employer Handbook,

PARTIAL BENEFITS - Individuals who work less than full time due to lack of work may be eligible for partial benefits. To be eligible for partial benefits, the individual must not be employed for more than 80% of the normal hours worked in the occupation. The partial weekly benefit amount payable is computed by subtracting the claimant's gross wages (fractional part of a dollar omitted) for the week claimed from 120 percent of the claimant’s weekly benefit rate . The partial benefit amount is computed to the next lower dollar, if not already a multiple thereof.

Putting these together, if a worker’s hours are cut by at least 20% and the worker does not earn at least $600/week, the worker is eligible for partial unemployment.

BTW, NJ law requires employers to give employees a notice and instructions on how to file for unemployment when workers are fired or laid off. I think it would be a good idea to give it to someone whose hours have been reduced at least 20%, as well.

New Jersey Law Against Discrimination Clarified to Include Autisim as Disability

2010-03-01T10:18:00.000-05:00

In one of his last acts as Governor, last month Gov. Jon Corzine signed an amendment to our Law Against Discrimination to expressly include autism spectrum disorders in its definition of disability. This amendment was based on an October 8, 2009 report from the Adults with Autism Task Force. The full text of the new law is available here.

Thanks to my former law partner Gerry Resnick at Resnick & Nirenberg for the tip on this new law!

Buddha's Blog Policy

2010-02-15T15:31:00.000-05:00

I just finished re-doing Fair Measures' E-Mail=Evidence webinar and their Internet and E-mail Policy and Procedure to include social media. In the process, I came across this insightful post on The Blog Herald: "Blogging is Better With Buddha"

If employees and employers all followed the principles of Right Speech, Right Action, Right Effort and the other parts of the Eightfold Path, we wouldn't need policies!

"Misconduct" to be re-defined in NJ unemployment law

2010-01-28T09:10:00.000-05:00

The NJ Department of Labor and Workforce Development is proposing to re-define "misconduct" in unemployment law, based on a case that came down when I was still in diapers.

Here's the info, from 41 N.J.R. 3781:

The Department is proposing to amend N.J.A.C. 12:17-10.2, so as to replace the existing regulatory definition for the term "misconduct" with the definition of the term that appears in the leading case on the issue, namely, Beaunit Mills v. Division of Emp. Sec., 43 N.J. Super. 172 (App. Div. 1956). Specifically, N.J.A.C. 12:17-10.2(a) currently states that, "[f]or an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." The court in Beaunit Mills, however, defined an act that would constitute misconduct as, "an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer."

At some time during the history of the regulations between 1956 and the present, the Department evidently sought to paraphrase the court's holding in Beaunit Mills. However, in doing so, it does appear that some of the meaning of the court's definition for the term "misconduct" was lost. Consequently, again, the Department proposes to replace the existing definition at N.J.A.C. 12:17-10.1(a) with the above quoted definition from the holding in Beaunit Mills.

NJ Medical Marijuana Law Creates Employment Questions

2010-01-16T17:55:00.000-05:00

Heads up, NJ employers!

Last week, the New Jersey Legislature passed a bill that legalizes marijuana use by patients with certain chronic illnesses. The bill, which Governor Corzine is expected to sign before leaving office on Tuesday, January 19, 2010, would allow doctors to prescribe marijuana to patients who have been diagnosed with such illnesses as cancer, AIDS, multiple sclerosis, and Lou Gehrig's disease. However, insurance companies will not be required to pay for medical marijuana. The Department of Health will issue registry identification cards to eligible patients, and the marijuana will be available from state-sponsored dispensaries.

While the bill does provide that employers do not have to accommodate the medical use of marijuana in the workplace, there are certainly some employment issues that could arise, such as:

Can you apply drug-testing and drug-free workplace policies to job applicants and/or employees who are legal users of medical marijuana?
Is medical marijuana use a reasonable accommodation under the Americans with Disabilities Act?
Are medical marijuana users elgible for intermittent leave under FMLA? At least one federql court has held, "Yes."

Guide on Social Networks and Employment Law

2010-01-04T12:41:00.000-05:00

Happy New Year!

If you are looking for guidance on the intersection of employment law and social networking, take a look at this FREE guide from Peopleclick at http://www.peopleclick.com/resources/wpaper/Social_Networks_Employment_Law_eBook.pdf.

Lots of good information and ideas.

Free! Employment Law Guide from the US DOL

2009-11-30T15:00:00.000-05:00

Your tax dollars are at work! The U.S. Department of Labor today announced the availability of an updated version of its popular Employment Law Guide, an online publication that describes the major employment laws administered by the Department.

The Employment Law Guide is a companion to the department's FirstStep overview advisor, an online system that allows employers to quickly and easily determine which federal employment laws apply to them by answering a few simple questions about relevant variables. Each chapter in the Employment Law Guide corresponds to the laws addressed in the FirstStep advisor, outlining coverage under the law; its basic requirements; employee rights; recordkeeping, reporting, notice and poster requirements; penalties and sanctions for non-compliance; relation to state, local and other federal laws; and contact information for further assistance.

H1N1 Flu and Employment Law Issues

2009-11-18T14:08:00.000-05:00

The Centers for Disease Control has published a variety of H1N1 resources for employers as part of its effort to slow the spread of this pandemic flu, but employers must also be prepared to address the legal issues that may arise with employees who come down with H1N1 flu, or need to care for family members with the disease.

The federal Wage and Hour Division has just posted information on common issues when employees get the flu and its affect on wages and hours worked under the Fair Labor Standards Act (FLSA) and job-protected leave under the Family and Medical Leave Act (FMLA).

The Equal Employment Opportunity Commission (EEOC) has updated its guidance for employers on workplace preparation strategies for the H1N1 flu. The guidance says that employers may implement infection control measures in the workplace (such as regular hand washing, coughing and sneezing etiquette, and tissue usage) without running afoul of the Americans with Disabilities Act (ADA). The guidance also states that an employer is allowed to survey its workforce in an effort to gather personal information needed for pandemic flu preparation, and provides a sample ADA-compliant survey.

Under the OSHA "General Duty Clause," an employer must provide a place of employment that is free from recognized hazards that cause or are likely to cause death or serious physical harm. OSHA has a variety of resources on pandemic flu workplace preparation and preventive measures.

Unemployment Benefits Extended: Obama Signs Bill - Employment Law - Law and Daily Life

2009-11-09T17:10:00.000-05:00

Unemployment Benefits Extended: Obama Signs Bill - Employment Law - Law and Daily Life

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How to Survive the Perfect Storm Part II

2009-10-31T16:47:00.000-04:00

"Historic trends and events are converging into a perfect storm that could place antidiscrimination at the center of corporate policy with an intensity unseen since passage of the Civil Rights Act in 1964", ‐ Dr. James Fadigan, one of the authors of the Title VII antidiscrimination provisions of the 1964 Civil Rights Act and a leading authority on equal employment opportunity.

If you think your managers aren't clear about the legal risks they can create for your company every
time they evaluate, re‐assign, respond to employee issues, or provide performance feedback you are probably right!

So how can your organization avoid a shipwreck in this perfect storm? Make sure the captain and crew (that is, your managers and supervisors) are well‐trained to:

• Know the waters
• Spot employment law hazards
• Chart their business reasons for all decisions, and
• Seek advice from navigation experts (upper management, HR, Legal)

Check out my new Fair Measures White Paper at http://www.fairmeasures.com/ask/white_papers/default.asp!

How to Survive the Perfect Storm

2009-10-08T17:10:00.000-04:00

“Historic trends and events are converging into a perfect storm that could place anti-discrimination at the center of corporate policy with an intensity unseen since passage of the Civil Rights Act in 1964”, according to Dr. James Fadigan, one of the authors of the Title VII anti-discrimination provisions of the 1964 Civil Rights Act and a leading authority on equal employment opportunity.

What’s causing that perfect storm? On October 27, I'll be speaking about the ten crucial facts employers must face in 2009-2010 and what employers can do to avoid a shipwreck in this perfect storm. I will deliver a workshop entitled “How to Survive the Perfect Storm: Legal Training for Your Managers “ at the 18th Annual Garden State Council Society for Human Resource Management Conference and Expo, scheduled for October 26th and 27th, 2009 at the Ocean Place Resort & Spa in Long Branch.

To help employers weather that perfect storm, I'll be talking about: new state and federal laws that expand employee rights, explaining the enforcement trends that can lead to increased employer obligations and personal liability for managers and supervisors, and recommending what changes employers should make right now to protect employee rights and prevent corporate and personal liability.

In case you don't already know them, the Society for Human Resource Management is the world’s largest association devoted to human resource management. Representing more than 250,000 members in over 140 countries, theSHRM serves the needs of HR professionals and advances the interests of the HR profession. This year’s Conference “Blueprint For A Changing Reality”, is a two-day educational session geared toward Human Resource practitioners that offers more than 40 knowledge-filled concurrent sessions; dynamic keynote addresses; and more than 50 of New Jersey’s leading HR vendors and outsourcing partners.

Repeal of ergonomics standard doesn’t stop OSHA from issuing citations

2009-09-21T13:31:00.000-04:00

Interesting to see the level of OSHA ergonomics enforcement. Repetitive stress injuries are the #1 cause of days off from work in the US. It makes business $en$e for managers to encourage breaks, rest periods, and good ergonomic practices.

Thanks to Miriam Joffe, Certified Professional Ergonomist at Auburn Engineers, for the tip!

Repeal of ergonomics standard doesn’t stop OSHA from issuing citations

The death knell for marriage discrimination..

2009-09-16T18:06:00.000-04:00

The death knell for marriage discrimination..

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UNEQUAL PAY FOUND

2009-08-31T07:33:00.000-04:00

Equal Pay Act cases, rare just a few years ago, are showing up more and more in the books. Here's a report on a recent appeals case, where a woman was promoted to another position at a salary of $45,600 and her replacement, a newly-hired man, was given an annual salary of $62,500.

HR.COM- The Human Resources Portal - UNEQUAL PAY FOUND

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Supreme Court Roundup

2009-08-17T16:43:00.000-04:00

Here's a recap of the US Supreme Court's 2008-2009 major labor and emplpyment law decisions:

Ricci v DeStefano, http://www.law.cornell.edu/supct/html/07-1428.ZS.html#content.
By throwing out the results of an firefighters' promotional exam, New Haven, CT violated Title VII’s prohibition against race discrimination. A 5-4 majority applied a new standard of statutory construction, holding that before an employer can engage in what otherwise would be prohibited discriminatory treatment in order to avoid or remedy an unintentional, disparate impact, the employer must have “a strong basis in evidence” to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. Mere fear of litigation, as alleged by New Haven, was not enough. (June 29, 2009).

Locke v Karass. http://www.law.cornell.edu/supct/html/07-610.ZS.html.
A union may charge fee-paying nonmembers for the national, or "extra-local" litigation expenses incurred by its parent union, a unanimous Supreme Court ruled, holding that the First Amendment permits such charges (January 21, 2009).

Crawford v Metro Gov’t of Nashville. http://www.law.cornell.edu/supct/html/06-1595.ZS.html.
The Supreme Court unanimously ruled that the Act’s retaliation protections extend to employees who speak out about discrimination and harassment not on their own initiative, but when answering questions during an employer-ordered internal investigation. (January 26, 2009).

14 Penn Plaza LLC v Pyett. http://www.law.cornell.edu/supct/html/07-581.ZS.html.
Reinforcing its decidedly pro-arbitration policy, the Supreme Court held that courts must enforce collective bargaining agreements that “clearly and unmistakably” require union members to arbitrate ADEA claims. (April 1, 2009).

AT&T Corp v Hulteen. http://www.law.cornell.edu/supct/html/07-543.ZS.html.
The Pregnancy Discrimination Act does not require employers to set current pension benefits at a level that will restore service credits to female employees for pregnancy leaves taken prior to the passage of the PDA. (May 18, 2009).

Gross v FBL Fin Servs Group. http://www.law.cornell.edu/supct/html/08-441.ZS.html#content
Much to my surprise (and that of many other observers), the Supremes refused to use the mixed-motives burden-shifting rules of Title VII, and held that an age discrimination plaintiff under the ADEA must establish by a preponderance of evidence that age was the “but-for” cause of the adverse employment action challenged. Even when the employee has produced some evidence that age was a motivating factor in the employer's decision, the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age. (June 18, 2009).

Employers Be WARNed!

2009-04-06T10:15:00.000-04:00

There’s no doubt that these are tough times. Last month the federal Equal Employment Opportunity Commission (EEOC) reported that workplace discrimination filings soared to an unprecedented level of 95,402 during fiscal year 2008, which ended September 30.

The EEOC statistics are astounding. Total claims went from 82,792 in 2007 to 95,402 in 2008, a 15 percent increase in just one year. Sexual harassment charges went from 12,510 in 2007 to 13,867 in 2008, the largest number of charges since 2002, sharply reversing a ten-year trend of flat or declining sexual harassment charges. Claims of age discrimination and retaliation charges saw the largest increases -29% and 23%, respectively. "The EEOC has not seen an increase of this magnitude in charges filed for many years," said EEOC acting chairman Stuart J. Ishimaru. The EEOC speculated that the surge in filings may be due to multiple factors, including economic conditions and employees’ greater knowledge of the law.

Then look at the unemployment statistics: As of March, the unemployment rate was 8.5%, the highest level in more than 25 years. More than 2 million people have lost their jobs since the beginning of the year. That’s 2 million potential plaintiffs.

If your organization is contemplating a large layoff or reduction in force (RIF), be WARNed! That means compliance with the Worker Adjustment and Retraining Notification Act (WARN). This federal law generally requires employers of 100 or more full-time employees to provide a 60 days’ notice of plant closings (termination of 50 or more employees) or mass layoffs (500 or more employees at a site or 50-499 employees constituting at least 33 1/3% of the full-time workforce at a site).

WARN says that an employer must provide written notice 60 calendar days before a plant closing or mass layoff to employees or their representative (union), the State dislocated worker unit (unemployment) and the local chief elected official. There are some exceptions, such as when the employer offers to transfer employees to a different site within a reasonable commuting distance, or the layoffs are due to unforeseeable business circumstances or a natural disaster. In addition, WARN has complex regulations regarding the timing and aggregation of terminations, definition of a "site" and similar details.

If that weren’t enough, a variety of states, including California, New York, and New Jersey, have their own “mini-WARN” laws that set different standards. For instance, New York law covers companies of 50 workers or more and California law coverage starts at 75, but federal law only applies at companies with 100 or more employees. New Jersey requires a more detailed notice than the feds, and New York requires 90 days’ notice instead of 60. The federal Department of Labor provides some online resources for employers facing layoffs, including links to state dislocated worker units, where employers can get information about any mini-WARN laws that might be applicable.

What this means to you: Obviously, employers should get expert advice from a local employment attorney when planning a mass layoff or plant closing. There's no doubt that many companies have a legitimate need to cut staff. The question becomes whether the companies have - and can prove - a legitimate basis for deciding who to keep and who to let go. It sounds clichéd, but now, more than ever, managers need to know the law on wrongful termination and the critical importance of documentation, and how to put that knowledge to practical use every day when tackling workplace problems.

New COBRA law and NJ health insurance

2009-03-05T17:47:00.000-05:00

The federal American Recovery and Reinvestment Act of 2009 (ARRA) provides for COBRA premium subsidies for the newly-unemployed, but dies not stop with COBRA. ARRA extends the same rights to emplpyees in states with COBRA-like plans for smaller employers. New Jersey is one of those states. So NJ employers must be prepared to deal with ARRA's requirements.

Under ARRA, certain individuals who are eligible for COBRA continuation health coverage, or similar coverage under State law, may receive a subsidy for 65 percent of the premium. These individuals are required to pay only 35 percent of the premium. The employer may recover the subsidy provided to assistance-eligible individuals by taking the subsidy amount as a credit on its quarterly employment tax return. The employer may provide the subsidy — and take the credit on its employment tax return — only after it has received the 35 percent premium payment from the individual.

Check out the IRS guidance at http://www.irs.gov/newsroom/article/0,,id=204708,00.html. As of 3/5/09 the NJ department of Banking and Insurance had nothing on its website about the new law.

HRC State of the Workplace 2009

2009-02-14T16:35:00.000-05:00

State Of The Workplace 2007-2008

View more presentations from hrcworkplace. (tags: benefits discrimination)

New FMLA ruls now in effect

2009-01-23T13:35:00.000-05:00

In 2008 the FMLA got its first significant update since its enactment in 1993. There are now provides two additional leave entitlements under the FMLA: (1) military caregiver leave and (2) qualifying exigency leave. Military caregiver leave requires employers to provide up to 26 weeks of unpaid leave in a 12-month period to the spouse, son, daughter, parent or next of kin of a service member injured in the line of duty. Caregiver leave is available to families of Regular Army, Navy, Marine Corps, Air Force, and Coast Guard personnel, as well as National Guard and Reserves troops. During that single 12-month period, caregiver leave is combined with regular FMLA leave and the total cannot exceed 26 weeks. Caregiver leave, like traditional FMLA, can be taken on an intermittent or reduced schedule basis, as medically necessary.
The 2008 law also allows an employee who has a spouse, son, daughter, or parent in the National Guard or Reserves to take some or all of the regular 12 weeks of unpaid FMLA leave in 12 month period due to a “qualifying exigency” resulting from the family member’s active military duty (or call to active duty) in support of a federal contingency operation. This does not include State call-ups to active duty.
What’s a qualifying exigency? The new rules define them as
1. Short-notice deployment – to address any issues that arise due to the fact that service member received a week’s notice or less of the deployment;
2. Military events and related activities – to attend any official ceremony, program, or event related to the service member’s active duty; or to attend family support or assistance programs and informational briefings sponsored by the military;
3. Child care and school activities – to arrange for alternative childcare; to provide childcare on an urgent or immediate basis; to enroll or transfer a child to a new school; and to attend meetings with school staff that are made necessary by the service member’s active duty or call to active duty;
4. Financial and legal arrangements – to make or update financial or legal arrangements; and to act as the service member’s representative in obtaining, arranging or appealing military benefits;
5. Counseling – to attend counseling sessions related to the service member’s deployment or active duty status;
6. Rest and recuperation – to spend up to five days with a service member who is on short-term R&R leave;
7. Post-deployment activities – to attend ceremonies and reintegration briefings for a period of ninety days following the termination of the service member’s active duty status; and to address issues arising from the death of a service member; and
8. Any other activities that the employer and employee agree qualify as an exigency.

NJ Family Leave Insurance--Notice Must Be Given!

2008-11-29T13:18:00.000-05:00

All employers covered by NJ Temporary Disability Insurance are also covered by the new Family Leave Insurance, which goes into effect in 2009. Payroll deductions for FLI start on January 1, 2009.

New Jersey employers are required by law to post notification detailing program information and employee rights to New Jersey Family Leave Insurance benefits. The required poster notification containing all the information the law requires employers to make available to employees can be downloaded at http://lwd.dol.state.nj.us/labor/fli/content/emp_requirements.html.
Posters are available in English and Spanish.

You must conspicuously display the notification poster in each of your workplaces, in a place or places accessible to all employees by December 15, 2008.

You must also provide each employee with a paper or electronic copy of the notification:
no later than December 15, 2008
at the time of an employee's hiring
whenever an employee notifies you that he/she is taking time off to bond with a newborn or newly adopted child or to care for a seriously ill family member
at any time, upon the first request of an employee.

Wal-Mart shuts its only unionized North American store

2008-10-20T18:36:00.000-04:00

From the CCH WorkWeek newsletter:

Wal-Mart announced last week that it would close its Tire and Lube Express store in Gatineau, Quebec, months after the store's six employees formed a union and secured a court-imposed bargaining agreement under Canadian labor law. Wal-Mart said the closure was a result of the "unrealistic" contract, which it claimed would increase its operating costs by 30 percent. Quebec's labor federation charged that the closure was "a fresh assault by Wal-Mart against the elementary right to unionize," and claimed the court-imposed contract was in line with salary norms for such work. The Gatineau site was briefly noteworthy for being the only unionized Wal-Mart facility in North America. The retailer shut down another Wal-Mart store in Quebec in 2005 after 200 workers there had sought to organize.

NJ Worker Comp Reforms Enacted

2008-10-14T11:04:00.000-04:00

I am not a workers' comp maven, but I noticed that on October 1, Gov. Corzine signed some bils on workers' comp reform. Two note-worthy provisions:

• Employers that knowingly fail to provide coverage can be charged with a crime and fined up to $5,000. Employers that fail to report workplace incidents to the Division of Workers’ Compensation could be fined up to $1,000.

• All employers must submit proof of workers’ comp coverage as part of their annual reports. If the proof is not included, the annual report will not be considered as properly filed.

NJ Paid Family Leave Regs Proposed

2008-10-14T10:31:00.000-04:00

The NJ Department of Labor and Workforce Development has issued proposed regulations implementing New Jersey’s paid family leave legislation. As you will recall, the new law gives all employees up to six weeks of paid leave to care for a sick family member or a child born to or adopted by the employee. Workers will begin making contributions to the fund on Jan. 1, 2009, and will be able to receive payment under the new law starting July 1, 2009. Workers covered by the NJ Family Leave Act (50+ employees) will also have their jobs protected while they are taking paid family leave.

Based on the increse in NJ's minimum wage, the proposed regs raise the maximum weekly benefit for state disability benefits to $546 per week from the current $524 per week and raise the taxable wage base for purposes of employer contributions from the first $27,700 of an employee’s annual wages to the first $28,900.

The proposed regulations also declare that family leave benefits paid by the State are non-taxable. Family leave benefits paid to employees under an approved private plan are considered taxable during the waiting week, then considered non-taxable afterwards. However, if the leave extends to 22 consecutive days, or the employee is eligible for at least one day of family leave law benefits in three separate subsequent weeks, the initial seven-day period will be considered non-taxable remuneration. A little confusing, no?

The proposed regulations are located at 40 N.J.R. 5509(a) (available through http://www.lexisnexis.com/njoal/) Written comments may be submitted to the NJDOL by Nov. 14, 2008.

Hello, GINA!

2008-10-10T00:09:00.000-04:00

No, Gina is not my new neighbor, but a bill signed into federal law in May, 2008: the Genetic Information Nondiscrimination Act of 2008.
The new law prohibits employers of 15 or more employees from:
1.    discriminating against employees and applicants on the basis of genetic information, which is defined as
" information about (i) such individual's genetic tests,(ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual."
2.    requesting, requiring, or purchasing genetic information (limited exceptions apply, such as for FMLA certifications)
3.    retaliating against individuals who exercise their rights under the law; and
4.    disclosing an individual's genetic information, which is considered confidential medical information under ADA and HIPAA (limited exceptions apply).
There are also sections that amend ERISA and HIPAA , and which prohibit group health plans from discriminating against individuals in terms of enrollment eligibility and premiums based on genetic information; and requesting or requiring that employees or their family members undergo genetic tests.
The employment provisions of GINA are effective November 21, 2009.    Interestingly, all Title VII remedies are available, but disparate impact claims are expressly barred. The EEOC will be enforcing GINA, and should issue final regulations by 5/21/09.
The text of the bill is at: http://thomas.loc.gov/cgi-bin/query/D?c110:6:./temp/~c1102mNaun::

Candidates on Labor Issues--Part I

2008-10-09T23:50:00.000-04:00

Now that the nominating conventions are over and the general election campaign is in full swing, let's look at the candidates' positions on labor issues. Today, we'll look at Barack Obama, and tomorrow we'll examine John McCain.
Here's what Senator Obama had to say about Labor Day:

Here's Sen. Obama's platform on labor issues (from http://www.barackobama.com/issues/economy/#labor)
Obama will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama will also increase the minimum wage and index it to inflation to ensure it rises every year.
Ensure Freedom to Unionize: Obama believes that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
Protect Striking Workers: Obama supports the right of workers to bargain collectively and strike if necessary. He will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
Raise the Minimum Wage: Barack Obama will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.
And on work/family balance (from http://www.barackobama.com/issues/economy/#family-balance)

Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama will expand it to cover businesses with 25 or more employees. He will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
Expand High-Quality Afterschool Opportunities: Obama will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve a million more children. Obama will include measures to maximize performance and effectiveness across grantees nationwide.
Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Obama will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
Expand Flexible Work Arrangements: Obama will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

The candidates on labor issues--Part II

2008-10-09T23:49:00.000-04:00

From the prior Worklaw Blog location:

I looked all over for a video of Sen. McCain or Gov. Palin addressing labor issues, but I could not find any. Here's what the McCain website has to say about workplace issues:
(from http://www.johnmccain.com/Images/Issues/JobsforAmerica/briefing.pdf)
John McCain will overhaul unemployment insurance and make it a program for retraining, relocating andassisting workers who have lost a job. The unemployment insurance system created in the 1950s needsto be modernized to meet the goals of helping displaced workers make ends meet between jobs andmoving people quickly on to the next opportunity. John McCain will reform the half-dozen trainingprograms to approaches that can be used to meet the bills, pay for training, and get back to work. JohnMcCain believes that we can strengthen community colleges and technical training, and give displacedworkers more choices to find their way back to productive and prosperous lives.

and, from http://www.johnmccain.com/Issues/JobsforAmerica/workplaceflex.htm:
John McCain understands that today’s changing economy is making it harder for parents to balance the demands of family life and their jobs. He believes that strong families require that parents be involved in the lives of their children. Flexible work arrangements can help families strike the right balance.
John McCain was proud to support the Family Medical Leave Act in 1993 that ensured men and women are able to take leave to care for a newborn child, adopt a child or care for an immediate family member with a serious health condition and return to a position that is substantially equal in pay, benefits, and responsibility. This was a needed minimum standard to ensure that parents were not penalized for making the important decision to raise a family. John McCain co-sponsored the Family Friendly Workplace Act, which sought to allow employers to provide flexible work schedules to help employees balance the demands and needs of work and family, such as allowing employees to take compensatory time-off rather than be paid overtime and to work more than 40 hours in one week and correspondingly less in another week.
John McCain also understands that our changing economy forces many families to deal with the disruptions that come with a job change. He believes that families should be able to hold onto the health and retirement benefits that they have chosen. He also believes that workers should be able to choose new training that fits their personal situation so that they can build new skills as their careers change.
John McCain believes that to keep America competitive in the world economy, employers need to be able to attract and retain workers. This requires employers to offer flexible work arrangements and allow workers to bring their health and retirement benefits with them or choose new plans.
John McCain also believes that as our workforce ages, many older Americans want to continue to stay in jobs. These workers have the experience and skills that help keep America competitive. More flexible work arrangements would enable these workers to continue their careers and help keep our economy competitive.
John McCain is calling for National Commission on Workplace Flexibility and Choice. This Commission would bring together a bi-partisan set of leaders representing workers, small and large employers, labor, and academics. The Commission would make recommendations to the President on how modernizing our nation’s labor laws and training programs can help workers better balance the demands of their job with family life and to enable workers to more easily transition between jobs.
The Commission would examine the following issues that John McCain believes are important to workplace flexibility and choice:
Modernizing the nation’s labor laws so that they allow for more flexible scheduling arrangements
Ensuring that the nation’s labor laws don’t get in the way of working at home
Promoting telework so that workers can spend less time commuting
Making health more portable so that workers don’t lose their benefits when they switch jobs
Ensuring that workers can choose retirement plans that best suit their needs
Providing workers with more choice in job training assistance so that they can build the skills they need for new and better jobs

Welcome to Worklaw Blog!

2008-10-09T20:12:00.000-04:00

I am migrating my blog over to blogspot.com. Prior posts that are still relevant will be moved over in the next few days.

Stay tuned for more Worklaw Blog soon!